Summary
concluding when the requirements of the career-offender statute were met, the district court did not abuse its discretion in sentencing Rodahl to the 60-month statutory-maximum sentence for theft by check
Summary of this case from Vickla v. StateOpinion
No. C2-99-1647.
Filed December 21, 1999.
Appeal from the District Court, Polk County, File No. K2981647.
Mike Hatch, Attorney General, and
Wayne H. Swanson, Polk County Attorney, Larry D. Orvik, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Scott Dean Rodahl was sentenced for the offense of theft by check under Minn. Stat. § 609.1095, subd. 4 (the "career-offender statute"), resulting in an upward durational departure from the guidelines. He challenges his sentence on the grounds that the monetary amount involved was small and his current and prior convictions were property offenses, not crimes against persons. We affirm.
Rodahl was also sentenced consecutively to a previously imposed North Dakota conviction (also an upward departure). He challenges the consecutive nature because the trial court made no findings supporting the departure. We agree, and reverse and remand for resentencing.
FACTS
Rodahl was charged with felony theft by check. Although the amount involved was less than $500, the charge was a felony because of Rodahl's prior theft-related convictions. He pleaded guilty to the offense as charged and to violating parole on a prior felony theft-by-check conviction. At sentencing, Rodahl conceded that he could technically be sentenced under the career-offender statute because of his lengthy criminal history, Minn. Stat. § 609.1095, subd. 4, but argued that he should be sentenced to the presumptive guideline sentence of 24 months.
The district court rejected his argument and sentenced him under the career-offender statute to the statutory maximum of 60 months. The district court also ordered the sentence to be served consecutively to Rodahl's previously imposed North Dakota sentence. Rodahl appeals.
DECISION
1. The career-offender statute permits a sentencing court to depart from the presumptive sentence under the guidelines
if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4 (1998). The decision to depart from the presumptive sentence rests within the trial court's discretion and will not be reversed absent an abuse of that discretion. State v. Halvorson , 506 N.W.2d 331, 336 (Minn.App. 1993). Generally, this court will not interfere with a trial court's discretion in sentencing unless the sentence is disproportionate to the offense. State v. Smallwood , 594 N.W.2d 144, 157 (Minn. 1999). In considering whether a departure is justified, this court bases its decision on our "collective collegial experience in reviewing a large number of criminal appeals from all the judicial districts." Id. at 157 (citations omitted).
Rodahl argues that his sentence is excessive because his current and prior convictions were property offenses, not offenses against persons, and because the monetary value involved in his current offense was small. The career-offender statute does not distinguish between offenses against persons or property. See State v. Rachuy , 502 N.W.2d 51 (Minn. 1993) (terms of career-offender statute can apply to property offenses). The court found on the record that Rodahl had more than five prior felony convictions and that those convictions and the current offense constitute a pattern of criminal conduct. We have reviewed the additional arguments Rodahl makes in his pro se brief, and we find them to be without merit. The court did not abuse its discretion in sentencing Rodahl as a career offender.
2. The decision to sentence consecutively or concurrently falls within the discretion of the sentencing court, and a consecutive sentence will not be reversed unless it constitutes an abuse of discretion. State v. Smith , 541 N.W.2d 584, 590 (Minn. 1996).
Minnesota sentencing guidelines apply when sentencing an offender for a crime committed in Minnesota consecutively to a previously imposed sentence in another state. See State v. Mattson , 376 N.W.2d 413, 414 n. 1 (Minn. 1985) (sentence consecutive to that of previously imposed Wisconsin sentence could have been imposed under Minnesota Sentencing Guidelines II.F.); State v. Sundstrom , 474 N.W.2d 213, 216 (Minn.App. 1991) (guidelines apply when court orders defendant's sentence be served consecutively to previously imposed federal sentence). Unless consecutive sentencing is presumptive or permissive, the use of consecutive sentences constitutes a departure from the guidelines and requires written reasons. Minn. Sent. Guidelines II.F. The sentence in this case does not fit the criteria for either a presumptive or permissive consecutive sentence, and therefore it constitutes a departure. See id.
Rodahl argues the district court abused its discretion by departing durationally under the career-offender statute and departing with respect to consecutive sentencing. A preference for concurrent sentencing is expressed in the guidelines, and this preference exists in the multi-state context as well. State v. Jennings , 448 N.W.2d 374, 375 (Minn.App. 1989). Furthermore, there is a presumption against consecutive sentencing for property offenses. Minn. Sent. Guidelines cmt. II.B.203. To depart durationally and with respect to consecutive sentencing, there must be severe aggravating circumstances present. Rachuy , 502 N.W.2d at 52. The same aggravating circumstances cannot be used to support both durational and consecutive sentencing departures. Id. (citing State v. Wellman , 341 N.W.2d 561, 566 (Minn. 1983)). Here the court used Rodahl's extensive criminal history of property-related convictions to support sentencing him as a career offender, but listed no additional facts supporting consecutive sentencing. "If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed." Williams v. State , 361 N.W.2d 840, 844 (Minn. 1985). We find that the district court abused its discretion in departing with respective to consecutive sentencing, and reverse and remand to the district court with instructions to modify the sentence from consecutive to concurrent.